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Wednesday, 7 January 2015

The IPKat and Merpel have just received the following letter, the contents of which are self-explanatory and expressed with an admirable lucidity. This letter has the support of "all or virtually all" of the main patent judges of Europe and from 11 countries.

The Rt. Hon. Professor
Sir Robin Jacob

5th January
2015

Jesper Kongstad,
Chairman of the
Administrative Council of the EPO,
European Patent Office,
Bob-van-Bentham-Platz 1
80469 Munich
Germany

I am writing on behalf of the
Intellectual Property Judges’ Association (IPJA) to express the extreme concern
of European Patent Judges to the recent events concerning a Member of the
Boards of Appeal of the EPO. IPJA is the representative association of European
National Patent Judges. This letter has been written after consultation with
the IPJA membership. It has near
unanimous support and no objection or reservation by anyone.

As we understand it the Member was,
on the orders of the President acting on his own initiative, physically removed
from his office and possession was taken of his computer. It is not, as far as
we know, suggested that the Member has committed any criminal offence. That, in
any event would be a matter for action by the criminal law enforcement
authority, not the President.

We do not know what it is that the
Member is alleged to have done wrong. Nor does it matter. What does matter is
that the Member has been treated in a manner we deem to be inconsistent with
the status and position of a Member of the Boards of Appeal as provided for in
the EPC.

As
Judges we are not in a position to take any concluded view of the legality of
the President’s action – the point could well come up in a real case concerning
the status of Board of Appeal decisions. But we can say that according
to article 23(1) (read in conjunction with articles 10 and 11) of the EPC it
seems clear that it is for the Administrative Council and the Enlarged Board to
take action, not the President, and that the Administrative Council
should have so declared.

More generally we make one further
observation. The present events seriously threaten the judicial independence of
the Boards of Appeal and by doing that call in question the guarantee of an
independent and impartial review of the European Office's decisions by a
judicial body. Not tolerating that should be the common interest of all Member
States of the European Patent Organisation.

A copy of this letter will shortly be
sent to EPLAW, IPKat and Managing IP magazine.

This Kat is of the old school, preferring the judges to devote their time to judging and leaving it to others to address the issues of the day -- but he also concedes that there is a time and a place when it is entirely appropriate for the judiciary to express its opinions and that this is one of them. That the IP judges have done so after consultation and with no dissenting voices makes this letter all the more powerful in its weight and impressive in its dignity. This Kat hopes that its addressee and his colleagues on the Administrative Council will take due note of its content.

33 comments:

A.23(1) states that a member may not be removed from "office". From what I understand, the President had him/her removed from "his/her office", not from '"office".

I expect a better understanding of construction from our judges.

I suggest the appropriateness of the President's action depends on the facts of the situation. It may be shown that his actions were entirely appropriate, or entirely inappropriate, or may fall within a grey area.

Anonymous @10:04, is it not possible to remove a person both from "office", in the sense of "status or ability to officiate" AND from "his/her office", in the sense of the room with desk, chair, computer and beautiful view out of the window?

By ejecting a person from the office in which he discharges his office functions, BB can breach both interpretations of Art.23 in one go

Sir Robin refers not only to Article 23(1), but also to Articles 10 and 11.

Article 11(4) shows that it is the Administrative Council which has disciplinary authority over BoA members. Article 10(2)(h) makes clear that the President's disciplinary authority does not extend to them. He can only make a proposal to the AC.

Anonymous@10:04 speaks on behalf of BB and his investigation unit. S/he shows absolutely no understanding for the law. Ignorants are in power at present at the EPO.The letter of Sir Robin Jacob is excellent and to the point. No wonder it is supported by judges throughout Europe.If I were a member of the AC I would feel shame for having supported Battistelli. But those little burocrats have no dignity.No much can be expected by Mr Kongstad. But pressure is increasing and soon or later the situation will explode.

Removal from office is not the only form of disciplinary action. A house ban and confiscation of a person's computer are also disciplinary actions. For Board of Appeal members, only the Administrative Council has the power to take such actions.

I suggest the appropriateness of the President's action depends on the facts of the situation. It may be shown that his actions were entirely appropriate, or entirely inappropriate, or may fall within a grey area.

I might have misunderstood you but I think the point is not whether the board member had done something deserving of removal from office, but whether the president should have any part in the removal

The difficulty as I see it is that it has always been important for French governments to have French people in charge of international organisations. Think of recent heads of the IMF, WTO and now (and of course previously) the EPO. The British and Germans have never felt this need to have "their people" holding these and similar positions. So unless Cameron and Markel have a quiet word with Pres. Hollande about removing the EPO President, this crisis could go on for quite some time. I'd like to think my cynicism about the politics of international organisation leadership is unfounded. But I don't think it is.

I think Sir Robin put it very clear:"We do not know what it is that the Member is alleged to have done wrong. Nor does it matter."A judge's immunity is not for the benefit of the judge, but for the benefit of justice.

There also has been a letter from EPLAW, the European Patent Lawyers Association, with the same kind of tenor. It has been reported on the Techrights blog: http://techrights.org/2015/01/01/epo-under-fire-eplaw/ Further on this site you can find also information on the other problems at the EPO, where the position of Vice-President Topic is under fire.

In response to Graham Dutfield's comment, it is alleged that Hollande and BB are not best buddies. BB is alleged to have refused a recent request from Hollande to give a presentation on EPO premises on the grounds that Hollande failed to address BB as "President" (rather than or "Monsieur").

I suggest the appropriateness of the President's action depends on the facts of the situation. It may be shown that his actions were entirely appropriate, or entirely inappropriate, or may fall within a grey area.

The president should simply have never been involved in this matter.

Admittedly the EPC has a serious flaw in that it puts the president in charge of the Office of which the BoAs are part. But that does not mean that the president must intervene in how the BoAs are run. Running the BoAs is the task of VP3. Although only an amendment to the EPC can make VP3 de jure independent of the president, common sense would have ensured a situation of de facto independence.

If I'm not mistaken, the presidium of the BoAs (see R. 12 EPC) was originally foreseen to be chaired by the president of the EPO. For obvious reasons, this task was immediately delegated to VP3 and the Rule was eventually amended to reflect this. Among other tasks, the presidium now advises VP3, not the president, with regard to matters concerning the functioning of the BoAs (R. 12(3)).

The articles of the EPC that attribute various powers concerning the BoAs to the president cannot so easily be amended (although a proposal exists). But that does not mean the flaws can be ignored. A straightforward solution, at least until the EPC is amended, would be to let VP3 exercise the relevant powers (Art. 10(2)(h), Art. 11(3) and (5)).

Maybe the AC can fix a few things by declaring the president to be "indisposed" as regards the BoAs (Art. 10(3)) ;-)

Regarding the "house ban", it should have been for VP3, not the president, to decide on the proper course of action (bearing in mind that the disciplinary authority is vested in the AC and to some extent in the EBA). The president should not have been involved in any way.

The mental picture should be that of the Office, headed by the president, and the BoAs, headed by VP3, as two independent entities. With that in mind, would the president have acted as he did?

That BB and Hollande do not see eye to eye is what you might expect, if BB is (as rumoured) a Sarkozite who is hopeful of advancement, once Sarkozy resumes his interrupted career as President of France.

Tell me, when is the next presidential election in a) a Grande Nation and b) the EPO, and where is BB bound, once his Sarkozy-like macho work at the EPO has been completed?

@ anonymous 11:59:> Do you not think there could be facts where the President should take instant "supervisory" action, rather than wait for the next agenda space at an AC meeting?

Rape, theft, murder, arson.

And even in such case, ther is always the EBoA to take action, not the president.

And, as Sir Robin put it:" It is not, as far as we know, suggested that the Member has committed any criminal offence. That, in any event would be a matter for action by the criminal law enforcement authority, not the President."

Just before Christmas a full page article appeared in the business section of the Süddeustche Zeitung about the present unrest at the EPO. The article said that the Munich public prosecutor confirmed that criminal charges on account of alleged slander of a person in upper management of the EPO, have been brought against an employee.

To this foreign observer, the comments of the two Anonymous - one at 10:04 and the other at 10:27 appear to be completely off base (I do admit that 10:27 may have been written with sarcasm).

This letter by Sir Jacob is not "an attack," and if anything, is dutifully understated given the fact that the matter of executive overreach may indeed reach a judicial body.

In a perhaps strained but parallel fashion, I only remark that across the ocean we too are struggling with a surreptitious lack of respect for separation of powers. On our end, it is not the executive branch (currently) that is overreaching, but the judicial branch. Nonetheless, the damage to the system of patent law as a result of this lack of respect is something that should not be blandly accepted just because an end result (for your situation, the supposed reform necessary for better examination) may be appealing.

Is there a suitable French weblog ("Le Khat de la Propriété Intellectuelle", or "KhatPI" perhaps) that has the will and wherewithal to push this issue in a direction that might lead to it coming to the reasonably direct attention of Monsieur Hollande? (Or is he known to be showing an interest in the adventures of his old mate BB already?)

If I understand well, the president Battistelli confiscated it. The computer was immediately checked by the investigation unit.What did they do on this computer? Only check? Or also add and remove some data?

At present, the scandal becomes so big, that the member of BoA could only be guilty of misconduct.Otherwise (if the member of BoA was accused by error), it would be very problematic for the president Battistelli.It could be also problematic for the Administrative Council who gave full power to Battistelli (and just renewed his contract for 3 additional years).

Who will supervise the process?At the EPO, the data protection officer is a main director in the Human Resource department. This director keeps his post in Human Resource, and works part time as data protection officer.It's an obvious conflict of interest. Such thing would not be possible outside the EPO.

If I have to bet: I will bet "the member of BoA will be declared guilty of misconduct" if the investigation is done and supervised by the EPO or by the Administrative Council.I will bet "the member of BoA will be declared innocent of misconduct" if the investigation is done by a national police and supervised by a national judge.

How justified the concerns regarding the independence of the Boards of Appeal are, is shown by the latest decision of the Administrative Council, with which they confirm the supervising role of the executive over the BoA: Http://www.epo.org/modules/epoweb/acdocument/epoweb2/159/en/CA-D_10-14_en.pdfI read:A complete integration of the boards of appeal in the career system of the EPO,Board members have a probationary period, contrary to their 5-year appointment (Art.23(1)EPC),The performance of board members and chairmen and therefore their renomination (or not) after 5 years is determined by the management aka executive.

How can the AC decide that, especially after all the recent letters had made it abundantly clear that the independence of the BoA is at stake and should be protected? Please, someone tell me I misunderstood this?

All the questions regarding the AC members are irrelevant and/or futile, in my humble opinion.

Most EPC countries (smaller countries, i.e. the majority) are utterly dependent on discretionary EPO monies via cooperation funds, not just because of the share of renewal fees.

For example, the PT office is in partial shut-down since Jan 5th because of "public contract issues" - the public inquiry phone line is "temporarily suspended" and handling of general matters by phone or email has "long waiting times". Any euro from the EPO is of course precious...

When all national examiner training for the smaller EPC countries is paid by the EPO, how could their AC members possibly imagine voting against BB in the slightest way?

The system thus works in a way that is self-perpetuating.

I do feel sorry that the EPO president is helping the ongoing attack of the EPO BoA, normally considered one of the best parts of the European Patent system.

Some of the noises and sounds coming from the UPC project, which has been taken over by "legal professionals", generally translate to the destruction of the judicial character of the Boards of Appeal. This means judicial recourse will only be available with higher costs and lengthier proceedings.

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